Marquez v. Nat'l Fire & Marine Ins. Co.

• Decision Date: 02 August 2021
• Docket Number: Case No. 20-cv-22791-BLOOM/Louis
• Citation: 551 F.Supp.3d 1313
• Parties: Vilma MARQUEZ, Plaintiff, v. NATIONAL FIRE AND MARINE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Florida

551 F.Supp.3d 1313

Vilma MARQUEZ, Plaintiff,

v.NATIONAL FIRE AND MARINE INSURANCE COMPANY, Defendant.

Case No. 20-cv-22791-BLOOM/Louis

United States District Court, S.D. Florida.

Signed August 2, 2021

Brian Christopher Costa, Benjamin Raul Alvarez, Alvarez, Feltman, Da Silva & Costa, P.L., Miami, FL, Leonardo H. Da Silva, Leonardo H. Da Silva, P.A., Daniel N. Merino, Miguel Raul Lara, Alvarez, Feltman, Da Silva & Costa P.L., Coral Gables, FL, for Plaintiff.

William Roderick Lewis, Donald Grayson Kelly, Scott Jeffrey Frank, Butler Weihmuller Katz Craig, LLP, Tampa, FL, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant National Fire and Marine Insurance Company's ("Defendant")Motion for Final Summary Judgment or, in the Alternative, for Partial Summary Judgment, ECF No. [32]("Motion").The Court has reviewed the Motion, the supporting and opposing submissions, all relevant exhibits

, the record in this case, the applicable law, and is otherwise fully advised.For the reasons explained below, Defendant's Motion is granted in part and denied in part consistent with this Order.

I.BACKGROUND

On November 13, 2019, Plaintiff initiated this action in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida against Defendant for breach of an insurance contract and declaratory relief.SeeECF No. [1-1]at 1-8("Complaint").On January 16, 2020, Plaintiff amended her Complaint, seeid. at 131-38("Amended Complaint"), asserting two counts: Count I – Declaratory Judgment and Count II – Breach of Contract.See generallyid.On July 7, 2020, Defendant removed the case to federal court based upon diversity jurisdiction.See ECF No. [1]("Notice").

Defendant now files the instant Motion, ECF No. [32], along with its corresponding Statement of Material Facts, ECF No. [31]("SMF").Plaintiff has filed a response in opposition to Defendant's Motion, ECF No. [47]("Response"), with an accompanying Response to Defendant's Statement of Material Facts, ECF No. [48]("CSMF").Defendant filed a Reply, ECF No. [50]("Reply").In addition, on July 7, 2021, the Court held a hearing on the Motion, among others, and considered further argument.See ECF No. [57].

II.MATERIAL FACTS¹

A.The Underlying Facts

This case involves a claim for insurance benefits allegedly owed to Plaintiff pursuant to her homeowner's insurance policy.SeeECF No. [1-1]at 132-33, ¶¶ 7-16.²Defendant issued the insurance policy to Plaintiff and her husband for property located at 11222 SW 95 Court, Miami, Florida 33176 ("Property").See generally ECF No. [23-2]("Policy").During the policy period, the Property sustained a covered loss.SeeECF No. [26-1]at 229(property loss notice);see alsoECF No. [26-1]at 36:14-37:7.Plaintiff first noticed water leaking from an interior wall of the Property on June 5, 2019, and she reported the loss on June 12, 2019.SeeECF No. [26-1]at 229;see alsoECF No. [26-1]at 36:14-37:7.Plaintiff's cause, origin, and damage expert, Alfredo Brizuela, has since determined that the loss resulted from strong wind forces on May 6, 2019, which Defendant disputes.SeeECF No. [24-1]at 5, 20, 30;see alsoECF No. [24-1]at 77:3-73:6, 106:23-107:7; ECF No. [29].

Upon receiving notice of Plaintiff's loss, Defendant assigned an independent adjuster from Insurance Claims Adjusters, L.P.("ICA") and the claim number BHSI0000085("Claim") to Plaintiff's reported loss.SeeECF No. [24-1]at 309.On September 13, 2019, following an investigation into the loss and review of an estimate prepared by ICA, Defendant issued an initial actual cash value payment of $2,749.14.SeeECF No. [23-1]¶ 7;see also ECF No. [23-3].On December 17, 2019, after Plaintiff had initiated this action, Defendant issued a supplemental actual cash value payment of $4,259.86, based on a revised estimate prepared by ICA and an internal review of Plaintiff's Claim.SeeECF No. [23-1]¶ 8;see also ECF No. [23-4].³

In order to prevent additional leaks inside the house, Plaintiff hired Total Quality Restoration ("TQR") to install a tarp on the roof of her Property.SeeECF No. [26-1]at 338-45;see also ECF No. [26-1] at 63:11-70:24.The invoice from TQR reflects that Plaintiff paid $2,121.63 for the tarp to be installed.ECF No. [26-1]at 342-45.Defendant ultimately reimbursed Plaintiff for this amount on December 31, 2019.SeeECF No. [26-1]at 346.After a few months, however, the tarp began to fail, and Plaintiff began experiencing leaks within her home again.SeeECF No. [26-1]at 83:12-85:4.As a result, on April 27, 2020, Plaintiff hired Krystal Care Restoration, Inc.("Krystal Care") to install a shrink wrap roof tarp on the Property, which was more durable and effective in protecting the Property from additional damage.SeeECF No. [26-1]at 384-88.Krystal Care invoiced Plaintiff for this shrink wrap roof tarp for $28,256.56.ECF No. [26-1]at 451.Defendant has not reimbursed Plaintiff for this invoice.

B.The Insurance Policy

The following Policy provisions are central to the issues in the instant Motion.First, the Policy contains a Loss Settlement provision in Section I – Conditions, which states that an insurer will initially pay the actual cash value of damage, but will pay the remaining amount of the full replacement cost as repairs occur and expenses are incurred.

D.Loss Settlement

In this Condition D. , the terms "cost to repair or replace" and "replacement cost" do not include the increased costs incurred to comply with the enforcement of any ordinance or law, except to the extent that coverage for these increased costs is provided in E.11.Ordinance Or Law under Section I – Property Coverages.Covered property losses are settled as follows:

....

2.Buildings covered under Coverage A or B at replacement cost without deduction for depreciation, subject to the following:

....

d."We" will initially pay at least the actual cash value of the damage, less any applicable deductible."We" will then pay any remaining amounts necessary to perform such repairs as the work is performed and the expenses are incurred and according to the provisions of 2.a. and 2.b.If total loss occurs, "we" will pay the full replacement cost without reservation or holdback of any depreciation in value, subject to the policy limits.

ECF No. [23-2]at 30, 48.

Moreover, the Policy sets forth certain Additional Coverages within Section I – Property Coverages, including an Ordinance or Law provision:

11.Ordinance Or Law

a. You may use up to 10%^[4] of the limit of liability that applies to Coverage A for the increased costs you incur due to the enforcement of any ordinance or law which requires or regulates:

(1) The construction, demolition, remodeling, renovation or repair of that part of a covered building or other structure damaged by a Peril Insured Against;

(2) The demolition and reconstruction of the undamaged part of a covered building or other structure, when that building or other structure must be totally demolished because of damage by a Peril Insured Against to another part of that covered building or other structure; or

(3) The remodeling, removal or replacement of the portion of the undamaged part of a covered building or other structure necessary to complete the remodeling, repair or replacement of that part of the covered building or other structure damaged by a Peril Insured Against.

b. You may all or part of this ordinance or law coverage to pay for the increased costs you incur to remove the debris resulting from the construction, demolition, remodeling, renovation, repair or replacement of property as stated in a. above.

Id. at 24.

As noted above, the Policy details certain conditions that must be met before an insurer becomes obligated to provide coverage:

C.Duties After Loss

In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us.These duties must be performed either by you, an "insured" seeking coverage, or a representative of either:

....

4.Protect the property from further damage.If repairs to the property are required, you must:

a. Make reasonable and necessary repairs to protect the property; and

b. Keep an accurate record of repair expenses[.]

Id. at 30.Likewise, the Additional Coverages section contains a provision on Reasonable Repairs, which provides for the reimbursement of reasonable costs incurred by an insured in connection with making necessary repairs: " ‘We’ will pay the reasonable cost ‘you’ incur for necessary repairs made solely to protect covered property from further damage, if the peril causing the loss and related damages are covered."Id. at 44.

C.This Case

The Amended Complaint alleges that Defendant breached the Policy by failing or refusing to properly adjust and pay Plaintiff's Claim.SeeECF No. [1-1]at 133-34, ¶¶ 23, 31.Indeed, in Plaintiff's Second Rule 26 Supplemental Disclosures, she indicated that she was claiming "Property Damage" in the amount of $186,475.46, which was based on Mr. Brizuela's estimate of the cost to replace the roof in its entirety.SeeECF No. [28-1]at 3;see also ECF No. [27-1].Plaintiff also indicated that she was claiming $28,256.56 for the cost of the Krystal Care shrink wrap tarp, seeECF No. [26-1]at 451, along with interest, attorneys’ fees, and costs to be determined at a later date, should Plaintiff prevail in this action.SeeECF No. [28-1]at 3.

Defendant now contends that Plaintiff is not entitled to recover these amounts for a number of different reasons, including that Plaintiff has not made any repairs to the Property since the loss and therefore has not incurred any of the costs she seeks to recover, as required by the Policy language.In her CSMF, Plaintiff denies Defendant's factual statement that "no repairs to the Property have been completed" and states that both the TQR tarp and...